My Lords, I thank the Minister for his introduction to this SI, and the Secondary Legislation Scrutiny Committee for drawing this SI to our attention. As the Minister said, the SI proposes to transfer several technical powers relating to waste from the European Commission to the Secretary of State, as well as correcting an error. In this regard, I have a number of questions.
First, can the Minister say when the error was first identified and why it has taken so long to bring the correction before us? This partly echoes the point made by the noble Baroness, Lady Bakewell, that a lot of water has gone under the bridge since the SI was first drafted. We have dealt with a number of corrections over the years, so why has this one taken so long? Perhaps he could address that point.
Could the Minister also say whether there have been any adverse consequences resulting from this drafting error? If there was no definition of the appropriate authority, I would have thought it undermined the whole legislation and that the legislation had no standing if it did not say who had the authority to carry it out. I would like to have a better understanding of what has been happening in the intervening period since the original wording was agreed by us. Perhaps he could also explain how that error came to light and why that took so long.
Secondly, referring to the various waste management standards, which the Minister said are all currently operational, can I double check whether all those standards were approved by Parliament in the first place? In other words, have they been signed off in the normal way?
Thirdly, paragraph 6.1 of the Explanatory Memorandum says that
“if this SI were to fail and the powers were not transferred to the Secretary of State”,
it would not be possible to make regulations to take account of improved scientific techniques in the future. In other words, this is the only way to do that. I take slight issue with that, because surely there remains the option of bringing forward new regulations to take account of improved scientific knowledge, an option that would exist at any time, without necessarily giving all those powers to the Secretary of State. We are being asked to give up our involvement in those decisions. That matters because, as we all know, having debated so many SIs in the past, the definition of improved scientific knowledge is a bit of a movable feast, and we might have a different view in Parliament from the Secretary of State.
The Explanatory Memorandum says that this is to allow more flexibility for the Secretary of State in responding
“to scientific and technical changes”.
But given the Government’s current excitement about the forthcoming Brexit freedoms Bill, how can we be sure that the freedoms for the Secretary of State set out in this SI will not be used to reduce standards in the name of technical advance? For example, there are several references in the SI to the Secretary of State being able to exercise this power only if it is considered
“appropriate to do so as a result of scientific and technical progress”.
This phrase is used in Schedule 6(3) relating to end-of-life vehicles, in Schedule 11(2)(a) relating to mining waste, and in Schedule 20(2) relating to the WEEE directive.
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However, there is no definition of scientific and technical progress. Only in Regulation 11(2)(b) does it add the extra provision—the extra safeguard, if you like—that the power should be exercised only
“with a view to achieving a high level of environmental protection.”
Why is not the extra protection of that phrase used in all the other categories: on end-of-life vehicles, the WEEE directive, and so on? I should have thought that that would have given us greater assurance.
Finally, is this a one-off set of measures or is Defra carrying out a wider review of the European Union (Withdrawal) Act 2018, as set out in paragraph 7.6 of the Explanatory Memorandum? Are these new freedoms and flexibility for the Secretary of State now part of a process to review all the withdrawal legislation? I should like an answer to that point, particularly, but also to my other questions. Perhaps if the Minister does not feel able to reply today, he could write to me on those matters. I look forward to his reply.